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Monday, March 12, 2018

Legal Ed's Futures: No. 15

Education for Justice

In the first post of this symposium, Frank Pasquale invites us to “think more about the real barriers to access to justice.” He points to numerous obstacles that lie largely outside the control of legal educators: laws that favor large companies, lack of funding for public defenders, and low wages for public interest lawyers. I agree with Frank that these laws and conditions are real—and that they greatly constrain access to justice.

But Frank and I seem to part ways when it comes to the role of legal education in addressing these problems. He dismisses law school clinics and academic scholarship as fairly ineffectual counterpoints to the power of the corporation-driven, carceral state. I agree that clinics and scholars often are Davids confronting Goliath but, like the Biblical David, they sometimes win. More important, Frank overlooks the ways in which our traditional curriculum strengthens the Goliaths of the world. To put it bluntly: If law schools refuse to teach the skills that lawyers need to practice effectively, relying upon employers to teach those skills, who will be better equipped for battle? The lawyers who work for wealthy corporations and government? Or the ones who work for consumers, employees, small businesses, criminal defendants, and all of the other “David” clients?

Let me explore this point in the context of criminal justice, a field I know relatively well. Better funding for public defenders certainly would improve access to justice. But there is much that law schools could do without that funding. I outline here the flaws in our current curriculum; in my next post I’ll suggest some solutions.

We educate prosecutors poorly. Prosecutors are the most powerful people in the criminal justice system: They have the power to dismiss charges, fashion plea deals, withhold evidence, and shape a defendant’s future. Prosecutors also hold a unique role among litigators: they are supposed to seek justice, rather than zealously advocate for a client.

Law schools do almost nothing to prepare prosecutors for this powerful, distinctive role. We steep future prosecutors, like the rest of their classmates, in the adversarial process. Throughout the curriculum, we urge them to “make the best case for their client.” We applaud arguments that push the boundaries of the law or skirt ethical constraints. Our focus on appellate cases ignores the intricacies of plea bargaining and the special responsibilities that prosecutors shoulder in that process. Even negotiation courses tend to focus on civil problems rather than criminal pleas.

We don’t teach law students much about interviewing witnesses; we certainly don’t teach them to interview with the skepticism a good prosecutor needs. Lessons in fact investigation and interacting with non-lawyers occupy marginal places in the curriculum. Nor do we provide the interdisciplinary courses that students need to become good prosecutors: classes on the causes and treatments for substance abuse, mental health problems, and domestic violence; courses on the limits of common forensic techniques; and cognitive science offerings that explore both the prevalence of unconscious bias and ways to fight that bias. Some schools offer some of these courses, but rarely in a systematic way that attracts and develops good prosecutors.

We educate defense lawyers even more poorly. Our adversarial culture is appropriate for criminal defense lawyers: they should press zealously for their clients. But other parts of the curriculum fail these students. Future defense lawyers need courses on effective plea bargaining, fact investigation, witness interviewing, client counseling, mental health and substance abuse, forensic science, and bias even more than future prosecutors need those courses. Prosecutors have the full power of the state behind them; to counter that power, defense attorneys need the best preparation they can garner.

First-rate public defender offices teach many of these missing elements, but why should they bear that burden? We know that public defenders are overworked and underpaid: why should they spend their time and dollars on foundational education we could provide in law school? Many counties, moreover, lack organized public defender offices; in those counties, courts appoint counsel for indigent defendants. Too often, those lawyers are recent law school graduates who lack the skills they need for effective representation.

We focus on felonies. The bar exam features more questions on homicide than any other crime—even though new lawyers rarely participate in homicide cases. Law schools, similarly, focus on murder, rape, armed robbery, and white collar felonies. Yet misdemeanor charges make up the bulk of criminal cases, and those are the crimes new lawyers will prosecute or defend. These crimes are far from trivial: misdemeanor convictions have a lasting impact on employment, housing, immigration status, eligibility for student loans, and other life essentials. These crimes also embody the systemic biases in our criminal justice system—often more clearly than felony prosecutions do.

Misdemeanors are not just “little felonies.” They involve different laws, different styles of plea bargaining, and more varied outcomes. A well prepared misdemeanor defense lawyer often spells the difference between a damaging conviction and a clean record. Our curriculum is topsy-turvy: We should prepare students to handle misdemeanors, then let them learn felony work in practice.

We ignore the police. Several symposium participants have noted the growing number of workers who engage in law-related work without obtaining a JD or law license. Those workers are employed directly by their client (usually a business or government agency), which allows them to avoid restrictions on the unauthorized practice of law. Police officers count among these workers: they regularly apply legal principles to the facts of new cases. The police decide whether circumstances allow a warrantless search; they also decide whether the facts before them support an arrest. For felonies, the police sometimes consult prosecutors on these matters but in misdemeanor cases they act largely on their own. Indeed, in the two counties where I practice, the police even file the charging instrument for misdemeanors. A prosecutor can amend or dismiss the charges, but the arrest and initial charges remain a matter of public record.

Police officers, in other words, daily resolve the kind of questions we pose on law school exams—yet they lack all but the most basic legal training provided in police academies or undergraduate criminal justice courses. Why aren’t law schools more interested in how police officers are educated?

I’ll explore in my next post how law schools might tackle these problems. Education is powerful; if properly administered, it is our greatest weapon against injustice, poverty, and other social ills.

Deborah Jones Merritt (The Ohio State University Moritz College of Law)